Sunday, April 13, 2014

Love me [legal] tender

Since recently withdrawing from all contemporary
constitutional law matters, I’ve been revising a book I wrote/edited over
thirty years ago entitled Government’s
Money Monopoly which I hope to have published via Amazon in a few months.
In short, the book is about how long ago as ancient Greece rulers (human and
institutional) have usurped power over money. (The book is not for everyone,
only those with a keen (self-destructive?) interest of how money became a monopoly
of the rulers.)

A substantial portion of the book is about the Legal Tender
Acts, about which here is a thumbnail sketch.

The North was strapped for money to fight the Civil War. To
finance it, Congress enacted the Legal Tender Acts. The best way to explain
them is by telling you about a piece of paper which is at this moment sitting
on my desk.

It is a crisp $50 Federal Reserve Note (having no intrinsic
value) that I once earned for fighting in the constitutional law trenches. In
addition to containing various serial and other numbers, illegible signatures,
a fancy seal, and a well-drawn pen-and-ink of President Grant, it bears (in
almost unreadable type) this legend: “THIS NOTE IS LEGAL
TENDER FOR ALL DEBTS PUBLIC AND PRIVATE.” Oh, yes . . . the back side is green.

Prior to the civil
war, there were no paper greenbacks. If money, in whatever form, was proffered by
a debtor in payment of an obligation, the creditor could insist on another form
(unless a contract provided otherwise).

But during the Civil
War who was going to accept ink-still-wet unbacked paper “money”?

So, unwilling to gamble
and desperate to finance the War, the federal government’s Legal Tender Act
made the greenbacks legal “money” and forced creditors to accept them upon pain
of having what they were owed “legally” extinguished.

Unsurprisingly, the
Supreme Court went along with the charade.

Why am I telling you
all this?

Because earlier today
I was working on Justice Field’s dissent in the second Legal Tender Cases (Knox
v. Lee).[1]

One does not often
hear words like this today:

For the reasons which I have endeavored to
unfold, I am com­pelled to dissent from the judgment of the majority of the
court. I know that the measure, the validity of which I have called in ques­tion,
was passed in the midst of a gigantic rebellion, when even the bravest hearts sometimes
doubted the safety of the Republic, and that the patriotic men who adopted it
did so under the conviction that it would increase the ability of the
government to obtain funds and supplies, and thus advance the national cause.

Were I to be governed by my appreciation
of the character of those men, instead of my views of the requirements of the
Constitution, I should readily assent to the view of the majority of the court.
But, sitting as a judicial officer and bound to compare every law enacted by Congress
and the greater law enacted by the people, and being unable to recon­cile the
measure in question with that fundamental law, I cannot hesitate to pronounce
it as being, in my judgment, unconstitutional and void.

In the discussions which have attended
this subject of legal tender, there has been at times what seemed to me to be a
covert intimation, that opposition to the measure in question was the
expression of a spirit not altogether favorable to the cause, in the interest
of which that measure was adopted. All such intimations I repel with all the
energy I can express. I do not yield to anyone in honoring and reverencing the
noble and patriotic men who were in the councils of the nation during the
terrible struggle with the Rebellion. To them belong the greatest of all
glories in our history—that of having saved the Union, and that of having
emancipated a race. For these results they will be remembered and honored so
long as the English language is spoken or read among men. But I do not admit
that a blind ap­proval of every measure which they may have thought essential
to put down the Rebellion is any evidence of loyalty to the country. The only
loyalty which I can admit consists in obedience to the Constitu­tion and laws
made in pursuance of it. It is only by obedience that af­fection and reverence
can be shown to a superior having a right to command. So thought our great
Master when he said to his disciples: “If ye love me, keep my commandments.”

[1] The case, covering approximately 124
pages in the Wallace edition of the Supreme Court opinions and 224 in another
edition, has been edited in order to exclude the discussion of issues which are
irrelevant to our present purposes. The full report of Knox v. Lee appears at
79 U.S. (12 Wall.) 457 (1871).

Search This Blog

About Me

In college (BA, NYU, 1954), I studied Russian and political science and later served in Korea with United States Army Intelligence. After law school (JD, NYU, 1959) for some 55 years I practiced constitutional and appellate law. From 1972 to 1993 I taught at Brooklyn Law School, where I am now professor emeritus. My courses included Constitutional Law, Appellate Advocacy, National Security, and First Amendment. A bibliography of my writing can be found at my blog of June 29, 2012. See also www.henrymarkholzer.com.